Dear Mr. Jashari,
I write to you on behalf of Human Rights Watch. As you may know Human Rights Watch is an independent international non-governmental organization dedicated to defending and promoting fundamental rights, working in over 90 countries around the world with offices in over 20 cities including, in Europe, Amsterdam, Berlin, Brussels, Geneva, London, Moscow, Paris and Zurich.
We write in connection with amendment XXXIII to the Constitution, which was discussed in Parliament on August 27, 2014, and which will be discussed further within the near future. The amendment reads:
1. Marriage shall be a life union solely of one woman and one man.
2. A civil union, or any other registered form of life partnership, shall be a life union solely between one woman and one man.
On October 16 you announced that you will only proceed with the first section of Amendment XXXIII relating to the definition of marriage.
We would like to express our extreme disappointment that the Macedonian legislature wishes to make such an amendment to the Constitution, which goes against global progress towards marriage equality, and fails to give the fullest effect to European human rights norms. We note that the narrow definition of marriage is already stipulated in the Family Law and the Law on Prevention and Protection against Discrimination.
We note that in Croatia, where the government recently amended their constitution to define marriage as a union solely between a man and a woman, it subsequently introduced legal recognition of same-sex relationships. Croatia is thereby meeting its obligation to afford same-sex couples legal recognition and protection. Articles in the Albanian and Kosovo constitutions stipulate that everyone has the right to marry. The gender of the spouses has not been specified and is thus wider than the proposed amendment in Macedonia. Likewise, the Charter of Fundamental Rights of the European Union guarantees, in article 9, the right to marry without any qualification as to the gender of the spouses.
In your October 16 announcement, you also said that you would propose a new law to regulate all aspects of marriage, family, and civil unions. However, you made no explicit mention of whether you will include same-sex couples in the new law and attribute to them the same rights as to different-sex couples. We would like to emphasize that Macedonia’s human rights obligations require it to provide legal recognition and protection to same-sex relationships and their families, and not to discriminate on grounds of sexual orientation.
As a party to the European Convention on Human Rights (ECHR) and a member of the Council of Europe, Macedonia is bound by the rulings of the European Court of Human Rights. Last year, the European Court of Human Rights (Vallianatos and others v. Greece (GC), nos. 29381/09 and 32684/09, judgement November 7, 2013) found that proposed registered partnership legislation in Greece, which did not include same-sex couples, was discriminatory. The Court ruled that the Greek legislation was in violation of article 8 (family life) taken together with article 14 (prohibition of discrimination) of the ECHR.
The Parliamentary Assembly of the Council of Europe has also recognized the importance of granting same-sex couples the same rights as opposite-sex couples in civil unions or registered partnerships. In Resolution 1728 (2010), the Assembly recalls that:
“…2. Under international law, all human beings are born free and equal in dignity and rights. Sexual orientation and gender identity are recognised as prohibited grounds for discrimination. According to the European Court of Human Rights, a difference in treatment is discriminatory if it has no objective and reasonable justification. Since sexual orientation is a most intimate aspect of an individual’s private life, the Court considers that only particularly serious reasons may justify differences in treatment based on sexual orientation. In its 1999 judgment in Lustig-Prean and Beckett v. the United Kingdom, it emphasised that negative attitudes on the part of a heterosexual majority against a homosexual minority cannot amount to sufficient justification for discrimination, any more than similar negative attitudes towards those of a different sex, origin or colour...”
Furthermore, the Parliamentary Assembly calls on all member states to:
“….16.9. ensure legal recognition of same-sex partnerships when national legislation envisages such recognition, as already recommended by the Assembly in 2000, by providing for:
16.9.1. the same pecuniary rights and obligations as those pertaining to different-sex couples;
16.9.2. "next of kin" status;
16.9.3. measures to ensure that, where one partner in a same-sex relationship is foreign, this partner is accorded the same residence rights as would apply if she or he were in a heterosexual relationship;
16.9.4. recognition of provisions with similar effects adopted by other member states;
16.10. provide the possibility for joint parental responsibility of each partner’s children, bearing in mind the interests of the children;…”
In the assessment of Human Rights Watch, any law regulating family and civil unions that excludes same-sex relationships from legal protection would violate the ECHR and fail to meet standards established by the Parliamentary Assembly of the Council of Europe.
In Recommendation CM/Rec(2010)05, the Committee of Ministers of the Council of Europe recommends that member states :
“…1. examine existing legislative and other measures, keep them under review, and collect and analyse relevant data, in order to monitor and redress any direct or indirect discrimination on grounds of sexual orientation or gender identity;
2. ensure that legislative and other measures are adopted and effectively implemented to combat discrimination on grounds of sexual orientation or gender identity:….
…23. Where national legislation confers rights and obligations on unmarried couples, member states should ensure that it applies in a non-discriminatory way to both same-sex and different-sex couples, including with respect to survivor’s pension benefits and tenancy rights.
24. Where national legislation recognises registered same-sex partnerships, member states should seek to ensure that their legal status and their rights and obligations are equivalent to those of heterosexual couples in a comparable situation.
25. Where national legislation does not recognise nor confer rights or obligations on registered same-sex partnerships and unmarried couples, member states are invited to consider the possibility of providing, without discrimination of any kind, including against different sex couples, same-sex couples with legal or other means to address the practical problems related to the social reality in which they live…”
As you acknowledged on October 16, the European Commission for Democracy through Law (Venice Commission), the Council of Europe’s advisory body, criticized the scope of amendment XXXIII, and said (in para. 98a of opinion 779/2014, from October 13, 2014) that:
“…insofar as the Amendment speaks of other forms of partnerships, it should not exclude providing to same-sex couples the same level of legal recognition as it provides to different-sex couples.”
You have agreed to adhere to the opinion of the Commission.
We look forward to receiving confirmation from you that the new law on family and civil unions will treat same-sex and opposite-sex couples and their families with equality, and would be happy to discuss the law with you to ensure compliance with human rights standards.
We would also urge you to consider repealing Amendment XXXIII altogether and instead to join with those European states who have introduced marriage equality, providing same-sex couples equal rights to marry as opposite-sex couples.
LGBT advocacy director